PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Friday, March 9, 2012

Law Students Hanging Up Your Own Shingle: Want to Make Money and Do Good?

1.  Get a list of power-of-sale foreclosures conducted in your area in the past 5 years.

2.  Examine the record for that property at your local county recording office.

3.  See whether or not the foreclosing party had the legal right to foreclose (HINT:  Chances are very good they didn't). 

4.  Contact the former owner of the property, who probably did not contest the foreclosure since she couldn't afford an attorney, and inform her that she has been unlawfully harmed.

5.  Ask her if she would like to bring suit against the foreclosing party for wrongful foreclosure and and infliction of emotional distress.

6.  Go get them.

7.  Repeat step 6.

8.  Repeat steps 1 through 7.

When the criminal law fails to deter unlawful behavior, the civil law should step in.  You can make a good living as a lawyer in a difficult economy and do good for society. 

You don't have to seek restitution of the foreclosed upon property if the client doesn't want it; damages are enough for justice.

 

Mark A. Edwards

 

 

March 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Where Seniors Live & Where They Are Moving

In the United States, it's fairly well-known that the population of individuals over the age of 65 is exploding.  One less reported aspect of that story is the wide variation in the rate of growth of the senior population at the state and local level.  Urbanland has a story on where seniors currently live, where they're headed, and how these decisions will impact communities:

Seniors benefit communities as well as present them with challenges. For instance, seniors are wealthier than any other age group . . . . They also are more politically conservative, and what they want in and need from a community is often quite different from what young families want and need.  . . .  Seniors are, for instance, pushing for more parks, open space, and libraries, often at the expense of funds for schools and playgrounds.

Steve Clowney

March 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Byrne on the Role of Preservation Law in Urban Development

Byrne

Peter Byrne (Georgetown) has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development (George Mason) on SSRN.  Here's the abstract:

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.

This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research.

Steve Clowney

March 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Colinvaux on Taxes and Conservation Easements

Colinvaux
Roger Colinvaux (Catholic) has posted The Conservation Easement Tax Expenditure: In Search of Conservation Value (Columbia Journal of Envtl Law) on SSRN. Here's the abstract:

Federal tax law has long provided a tax benefit for charitable contributions of easements for conservation purposes. A fundamental problem with this conservation easement tax expenditure is that the measure for the tax benefit – lost economic development value – is erroneous. Use of such an erroneous measure obscures the conservation benefits of the program by focusing attention and resources on divining a largely extraneous and unhelpful number. Further, to a considerable extent, the easement program is reflexively justified and understood based on this false measure, as if it represented the conservation value of the program. The Article argues that, in theory, the measure for the tax benefit should be changed to one that better approximates conservation value. This would help ensure that the program is efficient, in the sense that conservation benefits would exceed program costs.

However, the theory must account for the fact that conservation value is not, at least not yet, readily susceptible to quantification for tax purposes. Accordingly, the Article also argues that a second-best approach would be to change the measure of the tax benefit to a more objective number – the fair market value of the underlying fee interest – not only to provide greater certainty but more importantly to shift administrative and legal resources and attention to where it should be: on the conservation benefits of the program. Finally, the Article argues that serious consideration should be given to converting the deduction to a credit, both to make the tax benefit more equitable and also to provide greater flexibility, by more easily allowing for different levels of tax benefit to be provided based on satisfaction of conservation criteria, which could and should evolve over time to account for society’s changing needs. In any event, irrespective of the details, the conservation easement tax expenditure should be designed to promote a concept of conservation value – an affirmative value – that represents the best use of the land. The value of the tax expenditure should no longer be defined by what is lost, but rather by what is gained.

Steve Clowney

March 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2012

The Clicking of Heels on a Hardwood Floor

Can the sound of people in the upstairs apartment walking across their floor constitute a nuisance?  The Telegraph of London investigates:

The appellants' case is that the nature of the [wood] flooring is such that the nuisance arises from normal use, which would be abated by the respondent laying carpet and underlay, as required by the lease." Mr Barklem said the couple experienced no noise before the [installation of the timber floor was] done and that the irritating sound they complained of was caused by impact on the wooden floor.

Steve Clowney

March 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Byrne on Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development

Byrne
Peter Byrne (Georgetown) has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development (George Mason) on SSRN.  Here's the abstract:

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued that preservation lacks an organizing theory, imposes inauthentic consumer-friendly glosses on older structures, and inhibits architectural creativity. Although these critiques are as different as the cultural spaces inhabited by their authors (although both are professors at Harvard), both seemed to strike nerves, suggesting an underlying unease about how large a role preservation has come to play in urban development. This article assesses these critiques as part of an ongoing effort to make sense of historic preservation law.

This article proceeds as follows: First, it presents Glaeser’s critique in detail, placing it within the context of his larger argument about what makes cities attractive and dynamic. Grappling with the strengths and weaknesses of Glaeser’s critique leads to a discussion of how preservation regulation actually works and clarification of some of the benefits it confers. Second, this Article will attempt to specify Koolhaas’s critique, connecting it to similar complaints about preservation by more linear thinkers. Weighing objections to the coherence or authenticity of preservation leads to further discussion of the role that preservation plays in the larger culture. This article concludes with a call for future research.

Steve Clowney

March 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Ten Brink on Gay Neighborhoods

Tenbrink
Charles Ten Brink (Michigan State) has posted Gayborhoods: Intersections of Land Use Regulation, Sexual Minorities, and the Creative Class (Georgia State) on SSRN.  Here's the abstract:

This Article advocates the municipal encouragement and maintenance of diversity, specifically the inclusion of sexual minorities, through changes in the traditional application of the forms of land use regulation. Bringing together previously distinct conversations about the societal goals of land use planning and the social value placed on diversity by increasing numbers of consumer voters, the Article draws on New Urbanism and Richard Florida’s concept of the creative class to argue that the presence in a municipality of a visible, accepted, and integrated LGBTQ community signifies and stimulates not only the social but the fiscal health of that municipality. Building on and distinguishing the historical development of naturally occurring gayborhoods, this Article suggests a rationale and mechanisms for encouraging the growth of such communities. Land use regulation is one means by which a diversity-sensitive municipality can establish marginal advantages over otherwise similarly situated municipalities; in a society offering a wide variety of choices to members of the creative class, this competitive advantage is significant.

Steve Clowney

March 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 7, 2012

Squatters v. the Olympics

The N.Y. Times chronicles a property battle emerging in Brazil.  Residents of the favelas are resisting government attempts to take their property to build the infrastructure and stadiums necessary to host the 2016 Olympic Games:

“These events were supposed to celebrate Brazil’s accomplishments, but the opposite is happening,” said Christopher Gaffney, a professor at Rio’s Fluminense Federal University. “We’re seeing an insidious pattern of trampling on the rights of the poor and cost overruns that are a nightmare.”

Steve Clowney

March 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Brophy Reviews the Latest Property Casebook

Over at The Faculty Lounge, Al Brophy takes a quick look at Calvin Massey's new casebook, Property Law: Principles, Problems, and Cases.  The bottom line:

[T]here are also a lot of newer cases that I think convey a sense of exciting recent developments in property -- and maybe convey it in ways that are fairly straight-forward.  For instance, the landlord-tenant, servitudes, and real estate transaction materials include a number of recent cases that aren't in any other casebooks.  I think this has the potential to become a very, very popular property text and I hope to have the opportunity sometime soon to teach out of this.

Steve Clowney

March 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Balganesh on Quasi-Property

Balganesh
Shyamkrishna Balganesh (Penn) has posted Quasi-Property: Like, But Not Quite Property (Penn Law Review) on SSRN.  Here's the abstract:

Quasi-property interests represent situations where the law seeks to simulate the idea of exclusion, commonly associated with property rights, through a relational liability regime. These interests focus on the nature and circumstances of the interaction in question, which are thought to merit a highly circumscribed form of exclusion. This Essay disaggregates the analytical and normative bases of quasi-property interests, examines the primary triggering events that cause courts to invoke the category, and responds to a few potential objections to the recognition of quasi-property as an independent category of interests in the law.

Steve Clowney

March 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Wiseman on Private Governance in Property Regimes

Hwiseman
Hannah Wiseman (Florida State) has posted Castles, Tenements, and the Private Governance Divide on SSRN.  Here's the abstract:

The revered status of American home ownership has deep and seemingly impenetrable roots. In our modern mythology/reality, the castles that shelter and nurture our pursuit of the good life are under siege. A narrative common to both popular media accounts and a burgeoning property literature warns that private homeowners’ associations hold dominion over millions of Americans, dictating what they may do with their property and foreclosing when they cannot pay association fees or fines In response to this threat, legislatures, courts, and academics are fighting to stave off these intrusions by constraining servitudes. In focusing on the harms to property owners, these critics have unjustifiably omitted a large and growing segment of the population: renters. Nearly every American rents living space at one stage of life, and rentals are expanding as the real estate market continues on its uncertain trajectory. Tenants have no less lofty life goals than do homeowners, yet they, too, are governed by private rules for property use that severely constrain their freedom and allow termination of their property interest through eviction or sale. The rules in rental communities, moreover, serve fundamentally the same purpose as those set by homeowners association controlling neighbors’ uses to increase property value. The key difference between the two types of communities, beyond simple physical layout, lies in tradition: a woman’s home is her castle, but her apartment is her rickety tenement. Even this distinction is vanishing, however, as private communities with now-familiar, “intrusive” rules continue their decades-old proliferation, objections notwithstanding. If, then, private governance of property is fundamentally problematic, it is no less problematic for renters. But if, as seems more likely, we are generally willing to accept certain private rules in communities as a reasonable response to the interests of both owners and tenants, critics of private governance must explain why traditional notions of property should prevail over a modern approach to property consumers’ demands.

Steve Clowney

March 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 6, 2012

Bigger Than A Pink Flamingo

Googleearthholland

The L.A. Times reports on a heated dispute in Newport Beach, CA that centers around Dennis Holland's attempt to refurbish 72-foot wooden ship in his front yard:

The court order is the latest development in a long-running conflict between Dennis Holland, some of his neighbors and city officials, who sued the 65-year-old resident in an effort to have the vintage ship removed.  Holland now has until April 30 to remove the ship from his Holiday Road home, or face fines of up to $1,000 a day, or possibly jail time, according to Deputy City Atty. Kyle Rowen.

For more pictures of the boat and a video about the restoration process, see here.

Steve Clowney

(Pic: a google maps photo showing Holland's house and the boat)

March 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Smith on Property as the Law of Things

Smith
Henry Smith (Harvard) has posted Property as the Law of Things (Harvard Law Review) on SSRN.  Here's the abstract:

The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. One such baseline is the “things” of property. The bundle of rights picture popularized by the Legal Realists downplayed things and promoted the expectation that features of property are detachable and tailorable without limit. The bundle picture captures too much to be a theory. By contrast, the information cost, or architectural, theory proposed here captures how the features of property work together to achieve property’s purposes. Drawing on Herbert Simon’s notions of nearly decomposable systems and modularity, the article shows how property employs a thing-based exclusion-governance architecture to manage complexity of the interactions between legal actors. Modular property first breaks this system of interactions into components, and this begins with defining the modular things of property. Property then specifies the interface between the modular components of property through governance strategies that make more direct reference to uses and purposes, as in the law of nuisance, covenants, and zoning. In contrast to the bundle of rights picture, the modular theory captures how a great number of features of property – ranging from in-rem-ness, the right to exclude, and the residual claim, through alienability, persistence, and compatibility, and beyond to deep aspects like recursiveness, scalability, and resilience – follow from the modular architecture. The Article then shows how the information cost theory helps explain some puzzling phenomena such as the pedis possessio in mining law, fencing in and fencing out, the unit rule in eminent domain, and the intersection of state action and the enforcement of covenants. The Article concludes with some implications of property as a law of modular things for the architecture of private law.

Steve Clowney

March 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Long on the Rhetorical Landscape of Property Dispute

JerryLong
Jerrold Long (Idaho) has posted Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice on SSRN.  Here's the abstract:

An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation (or the lack thereof) appears consistent with a property meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to “protect” those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word choices, and definitions, have significant consequences, the rhetorical landscape of a property dispute plays a significant role in determining the dispute’s ultimate outcome. In most land-use disputes, all participants make one important concession, or assertion, before the discussion begins. The often unchallenged assertion is the claim that the discussion is about property rights. Once a particular property interest is characterized as a “right,” the community’s political capacity to regulate that property diminishes substantially. Consequently, our decisions to characterize as “rights” those settings, circumstances and relationships that are better and more accurately understood as “privileges” changes our focus from the community to the individual, and necessarily weakens the political justification for, and community understanding of, most resource- or community-protective ordinances. This article considers contemporary property jurisprudence, theory, and conflict in a Hohfeldian context to demonstrate how our default rhetorical landscape leads to real and unnecessary negative social and environmental effects.

Steve Clowney

March 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 2012

The Rent is Too Damn High, Ctd.

At Slate, Matt Yglesias makes the case that the U.S. is suffering from a dire shortage of multi-family apartments:

People don’t vanish just because they don’t want to buy a house. The collapse in house-building since 2006 has been massive. Meanwhile, the population has kept on growing. The only reason we have enough space for everyone to live in is that so many broke young people are living with their parents.

Steve Clowney

March 5, 2012 | Permalink | Comments (0) | TrackBack (0)

How Dense Can it Get?

The New York Times asks How Many People Can Live In Manhattan?  The piece does a nice job of putting current city densities in historical context:

Some perspective: As crowded as the city feels at times, the present-day Manhattan population, 1.6 million, is nowhere near what it once was. In 1910, a staggering 2.3 million people crowded the borough, mostly in tenement buildings. It was a time before zoning, when roughly 90,000 windowless rooms were available for rent, and a recent immigrant might share a few hundred square feet with as many as 10 people. At that time, the Lower East Side was one of the most crowded places on the planet, according to demographers. Even as recently as 1950, the Manhattan of “West Side Story” was denser than today, with a population of two million.

Steve Clowney

UPDATE:  If you don't have time to read the article, you should at least check out this infographic.  It's terrific (although if you have claustrophobia, it might make you anxious).

March 5, 2012 | Permalink | Comments (0) | TrackBack (0)

Infranca on RLUIPA

Infranca
John Infranca (NYU - Furman Center) has posted Institutional Free Exercise, Charitable Purposes, and Religious Land Use: A New Framework for Interpreting RLUIPA on SSRN.  Here's the abstract:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise, absent a compelling interest. For purposes of RLUIPA, a religious landowner may be a person, or, as is more likely, an assembly or institution. This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. As a result, courts frequently focus inappropriately on the substantial burden claims of individual adherents, rather than institutional claimants. The concept of institutional free exercise, as articulated in case law and legal scholarship, provides a framework for distinguishing between the religious exercise and substantial burdens of religious institutions and individual adherents and can aid in clarifying substantial burden doctrine. In addition, the treatment of religious and non-profit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape the evaluation of institutional substantial burden claims.

I propose that courts should distinguish between the substantial burden claims of “existing institutions,” those that have made use of a particular property for a period of time and seek to alter or expand their use, and “new institutions,” those seeking a parcel of land for their first location or seeking to obtain and use a new parcel of land. Existing institutions should receive protection akin to that provided by courts to existing uses under the “natural expansion doctrine.” Given their bonds with a specific location and community, certain land use restrictions will impose a substantial burden on their institutional religious exercise. In contrast, new institutions cannot claim the same degree of burden when denied the use of a particular parcel and their claims are adequately protected by other provisions of RLUIPA. Both new and existing institutions may have claims when the land use process itself, rather than the simple denial of a desired use, imposes a substantial burden, but those claims should be addressed through RLUIPA’s other provisions.

Steve Clowney

March 5, 2012 | Permalink | Comments (0) | TrackBack (0)

Harris on the Regulatory Takings in Canada

Douglasharris
Douglas Harris (British Columbia) has posted A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver (Book Chapter) on SSRN.  Here's the abstract:

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.

Steve Clowney

March 5, 2012 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Sunday, March 4, 2012

What, Exactly, Is the Role of the Police?

Illegally evict 10s of thousands from their homes?  No police response.  Try to set up free food bank on a public sidewalk outside of Bank of America?

 

March 4, 2012 | Permalink | Comments (0) | TrackBack (0)